Government urged to publish draft of regulations for Attorney General's proposed right to censure online news archives

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The Government has been urged to publish a draft of regulations to apply to the Attorney General's proposed right to censure online news archives.

The joint Parliamentary Committee on Human Rights today raised the issue in its report on the Legislative Scrutiny of the Criminal Justice and Courts Bill and the Deregulation Bill.

The proposals, under which media organisations would lose any defence to an action for contempt of court if they were warned about material prejudicial to court cases by the Attorney General, are contained in Part 3 of the Criminal Justice and Courts Bill.

In its report the committee expressed surprise that the Government had declined to produce a draft of the regulations to accompany the new power on the grounds that they had no implications for the right to freedom of expression guaranteed by Article 10 of the European Convention on Human Rights (ECHR).

"We disagree," the report said.

"The compatibility of the new Attorney General's notice procedure with the right to freedom of expression in Article 10 ECHR will depend to a large extent on the detailed provision to be contained in the proposed regulations and we cannot reach a view on that question without seeing them.

"We recommend that the Government publish a draft of the regulations at the earliest opportunity to enable such scrutiny to be carried out."

The committee, which pointed out that the Criminal Justice and Courts Bill would also make it a criminal offence for jurors to carry out internet research, said the changes were recommended by the Law Commission and intended to prevent fair trials being prejudiced by jurors coming across prejudicial material on the internet, whether deliberately, by searching for it, or inadvertently.

It went on: "The Government, in its ECHR Memorandum and its response to our letter, argues that the provisions in the Bill enhance freedom of expression because the availability of the new defence relieves media organisations of the burden of having to monitor their on-line archives to make sure that they do not expose them to the risk of liability for contempt because proceedings have subsequently become active."

It said media organisations had expressed concern about the impact of the Attorney General's notice procedure, arguing that it was unnecessary and disproportionate, given the new offences being introduced to criminalise internet research by jurors.

The report went on: "We recognise that the Bill's provision of a new defence to the strict liability rule for contempt of court, where proceedings become active after matter has been published on the internet, is in principle an improvement on the position under the current law.

"Currently, publishers who make material continuously available are exposed to the risk of becoming liable for contempt of court where proceedings subsequently become active, unless they monitor their archives to see if any such material has become contemptuous in the light of subsequent proceedings.

"However, we are concerned about the lack of safeguards on the face of the Bill against the arbitrary or disproportionate exercise of the Attorney General's power to, in effect, require material to be taken down on pain of losing the new defence.

"For example, the Government says that the Attorney General will only issue such a notice where the high threshold statutory test of 'substantial risk of serious prejudice' is satisfied, but this is not stated anywhere in the legislation itself.

"Nor is it clear from the Bill what role the 'public interest' defence in section 5 of the Contempt of Court Act 1981 should play in the Attorney General's decision whether or not to issue a notice.

"The Government may intend to provide for such safeguards in the regulations which the Bill envisages will be made about the giving of an Attorney General's notice, and the information to be contained in the notice.

"We asked the Government whether it would make available a draft copy of those regulations during the passage of the Bill to enable Parliament to scrutinise fully the implications for freedom of expression.

"The Government replied that it does not expect to do so. To our surprise, it said 'we do not view these arrangements as having any implications for freedom of expression.' We disagree. The compatibility of the new Attorney General's notice procedure with the right to freedom of expression in Article 10 ECHR will depend to a large extent on the detailed provision to be contained in the proposed regulations and we cannot reach a view on that question without seeing them.

"We recommend that the Government publish a draft of the regulations at the earliest opportunity to enable such scrutiny to be carried out."